ADAT LAW VS. LEGALITY PRINCIPLE?
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the perpetrators in the form of natural persons or corporations corporate criminal responsibility, and the criminal sanctions or measures applied.
With that issues in mind, the government and the drafting team of RKUHP assessed that total codification is appropriate for RKUHP. Total codification means putting the entire criminal law norms
that apply nationally in one KUHP prohibiting certain acts and prevents criminal law arrangements in legislations beyond the codification, and averts the repetition of the criminal law.
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Although there is a strong wish to perform total codification, this intention was not implemented as in Article 218 of RKUHP there was a new change that The provisions in Chapter I to Chapter V of
Book One also apply to acts that may be liable under other legislations, unless otherwise specified according to the legislations.
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Moreover, Article 103 of KUHP also implies another deviation from the trend of total codification, which is regarded as a way out of the problems of criminal law. Both
Article 218 of RKUHP and Article 103 of KUHP can be regarded as justification for regulating criminal acts outside the KUHP,
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including those that have been stipulated in, inter alia, Law on Corruption, Law on Human Rights, Law on Terrorism and Law on the Crime of Trafficking in Persons,
where in RKUHP all these provisions are put in separate chapters.
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I the Natio al Allia e fo C i i al Code ‘efo s ie , the fo ulatio of the offe es odified i
RKUHP seems to be adopted at random, in contrast to the original manuscripts as stipulated in the special criminal laws. The Government simply insert the articles and pay no due regard to the
relationship between the qualifications of the offense with the placement of the chapters in RKUHP.
III. ADAT LAW VS. LEGALITY PRINCIPLE?
Article 1 1 of RKUHP requires that the criminal law should be determined in advance by legislation, or known as the principle of legality. Only then one can be held accountable for having committed
an act. The legislations referred to in verse 1 are the regulations established by the legislators recognized by the State. In other words, it refers to the written law. Meanwhile, the laws that living
in the society customary or adat laws are not formed by legislators, unwritten, has the nature of pre-existent regulations prae-existente regels
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and not recognised as legislation that was referred to in Law No. 12 of 2011 on the Establishment of Laws and Regulations. Therefore, the latter laws
contrary to Article 1 1 of RKUHP, since there is a contradiction with each other. Article 1 2 of RKUHP expressly prohibits analogy. However, the living laws set forth in Article 2 1
of RKUHP is an analogy with the nature of gesetz analogy. Thus, there is another conflict with the provisions of Article 1 of RKUHP. Besides, criminal law actually calls for regulation that is detailed
and thorough, a legal maxim known as lex certa. Bearing in mind adat law is not a written law; therefore, it is not possible to formulate the offences set it out in detail.
The recognition of living laws in communities is the remnant of the spirit of Indonesianising criminal law. The recognition of indigenous peoples through the application of traditional criminal law does
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Id., at 25.
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This is an unofficial translation of Article 218 of RKUHP.
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Besides Article 103 of Penal Code, Article 15 1 of Law No. 12 of 2011 is also a basis for invoking criminal sanctions outside the Penal Code.
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Elaboration on this aspect can be seen in Bernhard Ruben Fritz Sumigar, Kodifikasi dalam RKUHP dan Implikasi terhadap Tatanan Hukum Pidana Indonesia, Jakarta: ICJR, 2015 at 9-15.
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Soepomo, Bab-bab tentang Hukum Adat, Penerbitan Universitas, 1967 at 102.
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not have a place in RKUHP, because adat law is not in line with the spirit of criminal law, which calls for codification and unification. In addition, accomodation of living laws in the society, enforced
through the courts, can eliminate the required essence of customary law, which contains ritual and religious elements.
Seeing the conceptual contradiction between the principle of legality and the living laws in the community supra,
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therefore, the provision in Article 1 of RKUHP need to be reformulated to remain consistent with the pure application of the principle of legality.
The provision of Article 2 1 of RKUHP is not a form of extension of the principle of legality, but is a backward step and removal of the original meaning of the legality principle per se. Thus, the
possibility of application of living laws in the society needs to be eliminated in criminal law provisions.
The inclusion of legal arrangements living in the community has been in contravention with the principle of lex certa under criminal law that requires a detailed formulation of the prohibited acts.
The inclusion of laws living in the society can create legal uncertainty
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and gives rise to arbitrariness in the enforcement of criminal law.
The arrangements regarding the living laws in a society in RKUHP is inappropriate. Criminal law requires codification and unification, whilethe living laws in the society are plural and dependant on
the particular community. These laws should be placed in another means of law, other than criminal law. In any event, accommodating adat law in RKUHP causes a loss of the essence of that law itself.
It should be placed in the interpretation of the elements of crimes, as have occurred in practice, instead of placing it as the basis for punishment. Let the living laws in the community grow and
develop themselves in indigenous communities without having to be codified into a formal law. The public sense of justice can be stronger when enforcement is left to their own communities.